The Comey Misfire

It was the mother of all bombshells, and Donald Trump dropped it late in the afternoon of May 9 on an unsuspecting Washington.

In a manila envelope hand-delivered by his longtime aide, the rookie President informed FBI Director James Comey–whose agents are shoulder-deep in an investigation of the Trump campaign’s possible ties to Russian meddling in the 2016 presidential campaign–that he was kaput. “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau,” Trump wrote. Comey, who was in Los Angeles on bureau business, learned of the firing on television. At first he thought it was a joke.

Not a joke–but probably a gross miscalculation by Trump, like reaching for a gasoline can in order to extinguish a grease fire. Over the past year, a growing number of observers, ranging from career Justice Department officials to politicians in both parties, had come to the conclusion that Comey’s fine-tuned sense of his own spotless integrity was a fire in desperate need of dousing. What one former colleague of Comey’s calls his “moral vanity” led him to insert himself repeatedly in last year’s election via improvised tramplings of standard department procedures. The director told Congress that he was “mildly nauseous” at finding himself mired in politics, but had to admit he would do it all exactly the same way if he were to live through it again.

But Comey wasn’t removed by some dispassionate board of inquiry. He was canned by a man whose campaign aides and at least one former National Security Adviser are under FBI investigation. Indeed, at almost the same moment that Trump pulled the trigger, news broke that subpoenas had been issued in connection with the case. Then multiple news outlets reported–and a Justice Department spokesperson denied–that Comey was axed just days after he requested more Justice Department resources to pursue possible Trump-Moscow connections. Even Republican noses wrinkled at the stench of Trump’s action. Arizona Senator John McCain renewed his call for a special investigative committee–a proposal not far from the unified demand by Senate Democrats for the appointment of a special prosecutor. Meanwhile, Representative Justin Amash, a Republican from Michigan, said he is considering introducing legislation to create an independent commission of investigation.

If Trump’s aim was the laudable one of restoring regular order at Justice and getting the FBI out of politics, he mistimed his shot. Ostensibly, the firing came in response to a three-page memo by the newly appointed Deputy Attorney General Rod Rosenstein, a Justice Department veteran of sterling reputation. Rosenstein argued that Comey’s freelance pronouncements about Clinton’s emails last year wrought “substantial damage” to “the FBI’s reputation and credibility” and said that Comey’s refusal to acknowledge these errors made him the wrong man to undo the damage. But the memo did not address the highly politicized nature of Trump’s own entanglements with Comey.

There were the roller-coaster tweets and comments in which candidate Trump attacked the director whenever he did or said something seemingly favorable to Clinton, but lavished praise if Comey seemed to damage the Democrat. The idea of a neutral FBI seemed alien to Trump. He continued to see the bureau through a political lens as President-elect, when he pushed Comey to track down the leakers behind news reports of ties between Trump’s people and the Russians–rather than focus on the ties themselves. And he did so onward into the White House, where senior officials say the President grew tired of waiting for Comey to knock down the Russia connection (“a hoax,” Trump recently fumed on Twitter).

However welcome the message of a less political FBI might be, the messenger and the moment were all wrong. Alternatively, if Trump was trying to replace the maverick in charge of the Russia investigation with a more manageable FBI boss, he picked the wrong way of doing it. The explosive firing means that Comey’s successor–whoever it is–will face a degree of scrutiny that would rattle Caesar’s wife.

Or maybe Trump was attempting to project a well-ordered, decisive, accountable Administration in contrast with the chaos of his early days. If so, he blew that too. Even high-ranking White House officials were caught flat-footed by the firing. Press secretary Sean Spicer insisted on May 9 that “no one from the White House” was involved in Rosenstein’s letter. “That was a DOJ decision.” But by the next day, Spicer’s deputy Sarah Huckabee Sanders was at the White House podium describing Trump’s meeting with Rosenstein and Sessions in which the President asked for the letter. Nor was the staff alone in its confusion. Trump was said to be surprised by the entirely foreseeable negative reaction. Members of Congress were gobsmacked. “I’ve spent the last several hours trying to find an acceptable rationale for the timing of Comey’s firing. I just can’t do it,” Republican Senator Jeff Flake of Arizona tweeted. “The timing of this firing is very troubling,” Republican Nebraska Senator Ben Sasse declared.

In a replay of his disastrous travel ban during his first week on the job, Trump once again seeded a storm without plans to explain the change in weather to the public. It was difficult–maybe impossible–to find either an angle or a metaphor that made the move look smart. The President dropped the bomb on James Comey, but he neglected to get clear of the blast zone himself.

President Trump shook hands with Comey during an Inaugural reception at the White House in January

Andrew Harrer—Picture-Alliance/DPA/AP

Trump is hardly the first President to want to dump an FBI director. The bureau’s most famous executive, J. Edgar Hoover, used a combination of press hype and blackmail to survive nearly half a century as director, from 1924 to 1972. During that reign, a number of Commanders in Chief longed to be rid of the conspiratorial Hoover. In one of these occasional brushes with joblessness, the director picked up rumblings that John F. Kennedy wanted him out. Hoover called on the President, armed with incriminating details of Kennedy’s sexual excesses, part of the trove of dirt on public figures that Hoover collected as possible ammunition. After his visit, there was no more talk of firing Hoover. After the old man’s death, Richard Nixon’s inner circle exploited acting director L. Patrick Gray in a desperate effort to escape the grip of Watergate. Later, Bill Clinton seethed at the Javert-like doggedness of Director Louis Freeh, who showed uncommon energy pursuing various scandals and nonscandals around the Clinton Administration.

But this is the first time an FBI director has been fired over the way he performed his duties. (The only previous firing was for malfeasance: in 1993, Clinton dismissed Director William Sessions after a Department of Justice investigation found that Sessions had misused bureau resources.) The unprecedented nature of Trump’s act brings into sharp focus the slowly tightening crisis of credibility that dates to Election Night, Nov. 8, 2016.

The possibility that Trump’s narrow election win was enabled through some combination of Russian disinformation and Comey’s rule-bending self-regard shook the confidence of millions in their government of, by and for the people. Even as Trump’s supporters marveled at his success in storming the citadel of the elite, the still shadowy contacts between Moscow and the campaign undermined the new President’s Administration. National Security Adviser Michael Flynn was dumped less than one month into Trump’s term when it was revealed that he misled Vice President Mike Pence about his Russian contacts. (Trump later blamed former President Obama for the mess.) Attorney General Jeff Sessions was forced to recuse himself from the investigation of the matter, having failed to tell Congress about his own meeting with the Russian ambassador.

Trump may have felt empowered to strike a blow that his predecessors would not risk because of the widespread Democratic dismay at Comey’s conduct over the past year. A polarizing figure, the 6-ft. 8-in. former prosecutor is seen by his admirers as a paragon of fearless integrity and by his detractors as a man drunk on self-esteem. One path or the other led him to the conclusion last year that then Attorney General Loretta Lynch had been compromised in her ability to represent the Justice Department’s inquiry into Hillary Clinton’s email. On an airport tarmac in Arizona, Lynch’s government plane happened to be parked next to a private jet bearing former President Clinton, who decided to pay a private call on Lynch. Though both Clinton and Lynch insist the email investigation never came up, Comey testified before Congress that this meeting “was the capper for me.” Comey said he decided that a statement through normal channels that the Justice Department had decided not to prosecute would have no credibility. “The best chance we have as a justice system is if I do something I never imagined before–step away … and tell the American people, Look, here’s what the FBI did, here’s what we found, here’s what we think. And that that offered us the best chance of the American people believing in the system.”

The result was an odd press conference on July 5, 2016, in which Comey pronounced Clinton’s actions “extremely careless,” but said “no reasonable prosecutor would try to make a case.” On the stump, Trump howled corruption, while Clinton absorbed the scolding and hoped the matter would fade. Then, on Oct. 28, less than two weeks before Election Day, Comey struck again. Having said the case was closed, he said he felt duty-bound to report to Congress that additional emails had been discovered and the FBI was examining them. It turned out the material was found on a laptop belonging to the husband of Clinton aide Huma Abedin, who was under investigation in an unrelated sexting scandal.

This, too, was a breach of department rules. During the term of Attorney General Eric Holder, employees were reminded of regulations limiting the release of prejudicial information close to an election. And this was highly prejudicial information, indeed. Trump declared that Clinton was headed for a criminal prosecution and led crowds in chanting, “Lock her up!” The chants continued even after Comey announced shortly before Election Day that the newly discovered emails were not, in fact, relevant.

Clinton put a large share of the blame for her loss squarely on Comey’s shoulders. In an interview on May 2, she said, “If the election had been on Oct. 27”–the day before Comey waded back into the fray–“I would be your President.”

There was speculation during the transition that Trump would replace Comey immediately, and when he did not, many assumed he was waiting for the results of an inquiry by Justice Department Inspector General Michael Horowitz. Instead, the occasion was Rosenstein’s damning letter laying out in convincing detail Comey’s repeated violations of Justice Department rules governing discussion of criminal investigations. Trump, who has not built a reputation for strict adherence to rules, may have mistakenly believed that Democrats in Congress were still so angry with Comey that they would welcome the firing. If so, it was an error born from rage. Insider reports from the White House suggest that Trump, livid over Comey’s more recent statements confirming the Russia investigation and knocking down the President’s tweeted claim that Obama had wiretapped Trump Tower, was itching for the first excuse he could find.

Penned by Rosenstein and endorsed by Sessions, the letter looked pretextual, as lawyers like to say–a fig leaf to cover a decision Trump had already made for other reasons. But that sort of move didn’t square with Rosenstein’s rock-solid reputation. In any case, there is no doubt that Rosenstein’s memo, if nothing else, certainly reflected concerns widely shared by career professionals in the Department of Justice. While Comey has his defenders, many of the thousands of prosecutors in the department have been outraged by his self-serving flouting of the rules. Republicans and Democrats alike have been fuming over Comey’s unilateral decision to take the July announcement out of Lynch’s hands. Even if he believed that the attorney general was compromised, he should have taken his concerns to her deputy. Comey’s error was compounded, they believe, by his ruminations on Clinton’s alleged recklessness. “If you’re dropping the case, you do it. You don’t then deliver your closing argument,” one former federal prosecutor explained. And then there was the politically sensitive announcement fewer than 30 days before an election. Three strikes and you’re out.

“If you are in the business of enforcing the law, the worst thing in the world is to be so imbued with your own righteousness that you begin to skirt the law to protect your image,” the former prosecutor summed up.

But this is really not about Comey anymore; he has been fired. What matters now is how the remaining law-enforcement officials carry out the law. And under the Constitution, no one is more squarely in the business of enforcing the law than the President. Trump is unquestionably imbued with his own righteousness. The question now is: Has he skirted the law to protect his image?

The question is especially troubling because the FBI’s Russia probe was beginning to look like the only serious one in town. The House inquiry has long since become a laughingstock: the lawmaker in charge, House Intelligence Committee chair Devin Nunes, was forced to abandon his post amid an ethics investigation into whether the California Republican had improperly disclosed classified information in his rush to protect the President. The Senate’s investigation is short on staff and moving slowly, compiling an ever-longer list of questions without much urgency about finding answers. Republicans John McCain and Lindsey Graham are among the Senate’s most determined Russia hawks and lead committees that are pursuing probes, but they have limited investigative powers.

Senate minority leader Chuck Schumer spoke for his party in demanding a special prosecutor. But Democrats don’t have the power to force the move, nor, in all likelihood, the votes to block the appointment of a new FBI director. While a handful of Senate Republicans expressed alarm at the way Trump canned Comey, none endorsed calls for a special counsel. Senate majority leader Mitch McConnell has already opposed the idea. Which leaves Democrats grasping at hopes that Rosenstein–a Trump appointee who provided the pretext to jettison Comey–will somehow come to their rescue. If the Department of Justice isn’t “fearless and independent,” said Senator Sheldon Whitehouse, a Rhode Island Democrat, “then we are well on the way to becoming a banana republic.”

As for the President, White House officials insisted that he was amazed by the hostile reaction to the firing. Where have Americans heard that before? Shocked by the protests against his travel ban, surprised by the complexity of health care, wowed by the nuances of Asian geopolitics. There’s no end to the discoveries a person can make when he pursues a high office without bothering to learn what it entails. Everyone seemed to like it when Trump barked, “You’re fired!” once a week on The Apprentice. So what happened?